State v. Butts

504 P.3d 1288, 317 Or. App. 660

Opinion

Submitted January 18; conviction on Count 1 reversed and remanded, remanded for resentencing, otherwise affirmed February 16, 2022

STATE OF OREGON, Plaintiff-Respondent,

v.

AUSTON TYRESE BUTTS,

Defendant-Appellant.

Washington County Circuit Court 19CR79872; A173542

504 P3d 1288

Theodore E. Sims, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant . Auston Butts filed the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Lauren P. Robertson, Assistant Attorney General, filed the brief for respondent.

Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and DeHoog, Judge pro tempore.

PER CURIAM Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.

Cite as 317 Or App 660 (2022) 661

PER CURIAM Defendant was convicted after a jury trial of coercion (Count 1) and harassment (Count 4). The jury’s verdict was unanimous as to the harassment count, but their verdict was not unanimous as to the coercion count. Defendant argues on appeal that he is entitled to reversal of both convictions because the trial court erred in instructing the jury, over his objection, that it could return nonunanimous verdicts. The state concedes that the trial court erred by accepting the nonunanimous verdict, because that verdict violated the federal constitution’s unanimity requirement as set forth in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). We agree with and accept the state’s concession as to Count 1. Defendant also argues that the error entitled him to reversal of his conviction on Count 4. We reject that argument in light of State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020) (nonunanimous jury instruction was not structural error and was harmless with respect to unanimous verdict). To the extent that defendant makes additional arguments in his pro se supplemental brief, we reject those arguments without discussion.

Conviction on Count 1 reversed and remanded;

remanded for resentencing; otherwise affirmed.